Ninth Circuit Says No to Former LA County Sheriff Lee Baca’s Bid for a 2nd Appeal

On Friday, the Ninth Circuit Court of Appeals turned down a last ditch request from former Los Angeles County Sheriff Lee Baca for a second hearing from the appeals court—known as an en banc hearing.

This double rejection from the Ninth could clear the way for U.S. District Judge Percy Anderson to set a surrender date for Baca to begin his three year federal prison term.

Two months ago, on February 11,  a three-judge panel of Ninth Circuit judges affirmed Baca’s 2017 conviction  for charges of conspiracy to obstruct justice, obstruction of justice, and making false statements to federal investigators—all charges that came about when the once powerful sheriff repeatedly attempted to derail a federal investigation into brutality and corruption in LA County’s then scandal-plagued jail system.

After the first rejection by the Ninth—which was rendered in an efficiently-worded opinion—the attorneys for the once powerful sheriff asked for the en banc hearing, which is granted infrequently, and would have meant that the court’s Chief Judge, and ten other randomly drawn judges, would again hear arguments about why Baca’s conviction should be reversed.

With this new rejection, Baca’s last option would be the Hail Mary of trying to convince the U.S. Supreme Court to hear his appeal.

Since SCOTUS hears only 100-150 of the more than 7,000 cases that it is asked to review each year, a trip to the Supremes is inarguably a long shot.

The the 76-year-old Baca—who will be 77 on May 27—was convicted of the three federal charges on the afternoon of March 15, 2017.

“The former sheriff has now been held accountable for overseeing a widespread scheme to obstruct justice by issuing orders designed to protect a corrupt culture,” said then Acting U.S. Attorney Sandra Brown on the steps of the federal courthouse following the conviction. “Lee Baca knew what was right and was wrong. And he made a decision. His decision was to commit a crime.”

That was Lee Baca’s second trial.

In his first trial,  in December of 2016, the jury declared itself hopelessly deadlocked after 24-hours of deliberation, with eleven jurors voting to acquit, and a single juror holding out for a conviction.

Judge Anderson declared a mistrial.

The near-acquittal caused many to believe that the government would not choose to retry the former sheriff.

But on January 10, 2017, the government announced it would retry him. And the prosecution team began rigorously retooling their trial strategy.

It took the eight-man four-woman jury approximately fourteen hours to arrive at their unanimous verdict just before 2 p.m. on March 15, 2017.

Just shy of two months later, a somber Anderson sentenced Baca to three years in a federal prison.

“A custodial sentence”—meaning prison—“is an important step in restoring the public’s confidence in our criminal justice system,” said Anderson just before he announced the sentence to the man who had been elected five times by healthy margins to lead the nation’s largest sheriff’s department.

Such a sentence was a “necessary deterrent to our public officials, to law enforcement and to the public,” according to Anderson

“Alzheimer’s disease is not a get out of jail card,” the judge added.

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Guilty mind

Baca was first officially diagnosed as having some kind of cognitive impairments on May 13, 2014, and WitnessLA broke the news of his early Alzheimer’s diagnosis in May 2016.

That the former sheriff was struggling with Alzheimer’s disease was the underpinning of one of the main appeal strategies presented by Baca’s lawyers to the Ninth Circuit at his November 6, 2018, hearing.

His defense team explained how they had wished to bring in UCLA psychiatrist Dr. James Spar, to testify about Baca’s diagnosis of early-stage Alzheimer’s disease, and what such a diagnosis suggested about his cognitive ability in the years prior to his diagnosis.

Specifically, the defense wanted Spar to tell the jury about what he described as the likelihood that the former sheriff was suffering cognitive impairment during the four-and-a-half hour interview with federal officials on April 12, 2013, during which time he allegedly lied to the feds in four different instances.

Judge Anderson ultimately ruled against Dr.Spar being permitted to testify, writing:

“Evidence linking defendant’s current diagnosis to the charges is entirely speculative and inadmissible, is the product of unreliable methodology, artificially limited facts, and bare speculation.1/ Indeed, undefined pronouncements including those in which Dr. Spar opines that defendant’s current diagnosis “may have been demonstrating clinical symptoms” and that there was an “increased probability” that defendant’s condition “negatively affected his ability” in 2013 would not help the trier of fact to understand the evidence or determine a fact in issue and would only serve to confuse the jury….”

Yet of all Baca’s stated reasons for appeal, the issue about the exclusion of Dr. Spar was the issue that seemed the most promising on appeal—especially given the fact that, when the Ninth Circuit panel granted Baca bail, they wrote that that the defense attorneys’ point about the excused expert witness was “at least ‘fairly debatable,’” given that “the exclusion of the expert’s testimony was ‘directly relevant and material’ with respect to Baca’s claim that he lacked the requisite mens rea for the false statements charge.”

(“Mens rea” means criminal intent or guilty mind, in other words, an individual’s awareness of the fact that his or her conduct is criminal.)

Moreover, wrote the appeals court panel, “if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.”

But, when it came down to writing their opinion, the panel concluded that the district court “did not abuse its discretion in rejecting Dr. Spar’s testimony as unreliable given his speculation about whether Baca suffered from cognitive impairments when making his false statements, and, if so, how those impairments affected his answers.”

Nor did the exclusion Spar “deny Baca his constitutional right to present a defense,” as the Baca’s attorneys had suggested, wrote the panel.

Seven members of the LA County Sheriff’s Department have been convicted of obstruction of justice and conspiracy to obstruct justice for following orders handed down by Lee Baca, and former undersheriff Paul Tanaka, Baca’s once feared second in command.  An eighth department member who flipped for the prosecution, also received a federal prison sentence.

In total, misconduct and brutality during the Baca/Tanaka reign resulted in federal criminal convictions for 21 department members.

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The 2013 portrait of Lee Baca above was taken by photographer and artist, Saxon Brice, whose remarkable paintings were most recently featured in the film Velvet Buzzsaw.

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